D. Smitherman v. Bayview Loan Servicing, L.L.C., e , 675 F. App'x 428 ( 2017 )

Case: 16-20328 Document: 00513831480 Page: 1 Date Filed: 01/11/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-20328 United States Court of Appeals
Fifth Circuit
FILED
D. PATRICK SMITHERMAN, January 11, 2017
Lyle W. Cayce
Plaintiff - Appellant Clerk
v.
BAYVIEW LOAN SERVICING, L.L.C.,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-798
Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
D. Patrick Smitherman, proceeding pro se, brought suit against Bayview
Loan Servicing, LLC in Texas state court, alleging various state law claims
regarding foreclosure proceedings related to Smitherman’s mortgage loan.
Bayview removed to federal court under a diversity jurisdiction theory. The
district court denied Smitherman’s motion to remand and then dismissed
Smitherman’s claims with prejudice.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-20328 Document: 00513831480 Page: 2 Date Filed: 01/11/2017
No. 16-20328
But on appeal, Bayview now concedes that “jurisdiction is not
established on the record before the court.” Specifically, the record fails to
provide enough information to determine whether complete diversity exists
between the parties. There is no dispute that Smitherman is a citizen of Texas,
but Bayview’s citizenship is unclear.
The citizenship of a limited liability company such as Bayview is
“determined by the citizenship of all of its members.” Tewari De-Ox Sys., Inc.
v. Mountain States/Rosen, L.L.C., 757 F.3d 481, 483 (5th Cir. 2014) (citing
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008)).
Bayview’s sole member is Bayview Asset Management, LLC, which is itself a
limited liability company with “multiple members that are limited liability
companies.” Bayview concedes “that the current record neither identifies nor
establishes the citizenship of all of those sub members at the time of removal.”
If any of those members was a citizen of Texas at the time of removal, complete
diversity would be destroyed.
Accordingly, we order a limited REMAND to the district court to permit
supplementation of the record and to make findings regarding Bayview’s
citizenship. After the district court has made these determinations, the district
court’s amended opinion shall return to this panel for appropriate action. We
retain jurisdiction during the pendency of the limited remand. Wheeler v. City
of Columbus, 686 F.2d 1144, 1154 (5th Cir. 1982).
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